MAXIMS

-[Link] Dimri, Faculty ,UPES

Volenti non fit injuria

Damage suffered by consent is not a cause of

action
 Thereare some general exceptions in
torts which plaintiff may plead in
defence of his act which has caused
damages to the plaintiff.
 Volenti non fit injuria
 Plaintiff the wrong doer
 Private defence
 Act of God
 Necessity
 Inevitable accident
 Mistake
 Statutory authority
 Volenti- consent
 It means "to a willing person, no injury is
done" or "no injury is done to a person who
consents”
This principle is embodied
in another maxim nulle-
injuria est quae in volenti
fiat which means that an
injury caused by self consent
in not actionable.
Consent must be free,
without any fraud,
compulsion or coercion.
 Damage suffered by consent is not a cause
of action.

 Hall v Brooklands Auto Racing club

 Padmavati v Dugganaika

 Wooldrige v Sumner

 Thomas v Quartermaine

 Illot v Wilkes
 In Wooldrige v Sumner Diplock LJ observed:

 “A person attending a game or a competition takes

the risk of any damage caused to him by any act of a
participant done in the course of and for the purpose
of the game or competition notwithstanding that such
act may involve an error of judgement or a lapse of
skill, unless the participant’s conduct is such as to
evince a reckless disregard of the spectator’s safety.”
 T C Balakrishanan v T R Subramaniam
- the defendants plea of consent of the plaintiff was
rejected by court and was held liable for negligence.

 Consent may be express or implied.

 Consent must be free
 Mere “scienti” is not volenti
 Merely because the plaintiff knows the harm does not
imply assents to suffer it.

 Smith v Baker- The employer took the defence of

plaintiff’s consent which was refuted on the
behalf of the plaintiff on the ground that he
merely had the knowledge(scienti)of the risky
nature of the work but not consented to it. The
employers were held liable for negligence in not
warning the plaintiff of the falling of the stone.
 Dann v Hamilton
 -in the action by the lady the representatives of
deceased driver, the defence of volenti non fit injuria
was pleaded but the same was rejected and the lady
was held entitled to compensation.
 The decision was in favour of the plaintiff.
 The reason for non application of volenti non fit
injuria was that the degree for intoxication of the
driver was not to such an extent that taking a lift
could be deemed to be consenting to an obvious
danger.
 Exception the doctrine
 The defence of volenti is not available in rescue cases
 By unfair Contract Terms Act,1977 [limits the right of
person to restrict or exclude his liability resulting from
his negligence by a contract terms]
 Where the act is unlawful and prohibited by law, no
amount of consent can make it lawful and defendant
will be held liable
 The defence of volenti is normally not available in
negligence cases.
 Haynes v Harwood
 Wagner v International Railway

 Baker v T.E Hopkins & Son

 Hyett v Great Western Rly Co.

RES IPSA LOQUITUR
 As a general rule , it is for the plaintiff
to prove that the defendant was
negligent ,however there are certain
cases when the plaintiff need not prove
that and the inference of negligence is
drawn from the facts.
 It indicates that the event itself explains
that the defendant was negligent

 It relieves plaintiff of burden of proof.

 There is presumption of negligence

according to maxim res ipsa loquitur
 Cases to be referred –

 Municipal Corporation of Delhi v Shubhagwanti

 Byne v Boadle
 Alka v Union of India
 R.S.E.B v Jai Singh
UBI JUS IBI REMEDIUM
 Where there is a right there is remedy
 First stage of evolution of law of Torts in England
under the system writs has been expressed by
latin maxim ubi remedium ibi jus (where there
was a writ there was a remedy)

 Ubi jus ibi remedium- where there is a right,

there is remedy(writ)

 Judicature Act,1873
INJURIA SINE DAMNUM
 Violation of legal right without causing any
harm or loss or damage to the plaintiff.

 Injuria sine damnum covers those torts which

are actionable per se ie., without the proof of
any damage or loss eg., trespass to land.
 Injuria- infringement of a right conferred by
law on the plaintiff.
 Damnum – substantial harm , loss or damage in
respect of money, comfort, health or like.
 Ashby v White
 Holt CJ-”If the plaintiff has a right, he must of
necessity have a means to vindicate and maintain it,
and a remedy, if he is injured in the exercise of
enjoyment of it; and indeed, it is a vain thing to
imagine a right without a remedy; for want of right
and want of remedy are reciprocal.”

 Bhim Singh v State of J & K

 Constantine v Imperial London Hotels
DAMNUM SINE INJURIA
 Damage which is not coupled with an
unauthorized interference with the
plaintiffs lawful right.

 Mere fact that man is injured by another’s

act gives in itself no cause of action
 Cases to be referred –

 Gloucester Grammar School case

 Mogul Steamship Co. v Mc Gregor Gow and Co.

 Ushaben v Bhagyalaxmi Chitra Mandir

 Town Area Committee v Prabhu Dayal

 Mayor of Bradford Corporation v Pickles
 Lord Ashbourne said: “The plaintiff have no cause
unless they can show they are entitled to flow of water
in question , and the defendant has no right to do
what he is doing…..”
 “qui facit per alium facit per se” which means
that the act of agent is the act of principal.

 He who does an act through another is deemed to

be in law to do it himself.
 Respondeat Superior which means- Let the
principal be held liable.
 Lord Pearce, commenting on the rationale behind
vicarious liability observed in Imperical Chemical
Industries Ltd v Shatwell-
“ The doctrine of vicarious liability has not grown from
any clear, logical or legal principle, but from the social
convenience and rough justice. The master having presumably
for his own benefit, employed the servant, and being better able
to make good any damage which may occasionally result from
arrangement, is answerable to the world at large for all torts
committed by his servant within the scope of employment.”
 Lloyd v Grace Smith & Co
 State Bank of India v Shyama Devi

 Ormrod v Crosville Motor Service Ltd

 Tirlok Singh v Kailash Bharti

 Dharnidhar Panda v State of Orissa.

 Hamlyn v Houston & Co

 Morgan v incorporated central council

DELEGATUS NON POTEST DELEGARE

 Delegatus non potest delegare is used to

describe duty of agent which means that a
person who is himself a delegatee cannot
further delegate.

 Maxim relates to contract of Agency.

 This maxim is also expressed –vicarious non
habet vicarium ie., one agent cannot lawfully
appoint another to perform the duties of his
agency.
WHEN AGENT CANNOT DELEGATE?

 Section 190 Indian Contract Act - An agent

cannot lawfully employ another to perform
acts which he has expressly or impliedly
undertaken to perform personally, unless
by the ordinary custom of trade a sub-agent
may, or from the nature of the agency, a
sub-agent must, be employed.
A person who is appointed by the
agent and to whom the principal’s
work can be delegated is known as
sub agent.
 “Sub-agent” defined.

 191. A “Sub-agent” is a person

employed by, and acting under the
control of, the original agent in the
business of the agency.
 Improper delegation section-193
 Where an agent, without having authority to do so, has
appointed a person to act as a sub-agent, the agent stands
towards such person in the relation of a principal to an agent,
and is responsible for his acts both to the principal and to third
persons; the principal is not represented by or responsible for
the acts of the person so employed, nor is that person
responsible to the principal.
 Proper Delegation sec-192 Where a sub-
agent is properly appointed, the principal
is, so far as regards third persons,
represented by the sub-agent, and is bound
by and responsible for his acts as if he were
an agent originally appointed by the
principal.
EXCEPTIONS
 Express or Implied Permission
 Nature of Work
 Trade Custom
 Ministerial Action
 Emergency
NEMO DAT QUAD NON HABET

- no one can pass a better title then he himself

has.
 Lord Denning summarized the position in
modern law as:
 “In the development of our law, two principles have striven for
mastery. The first is protection of property: no one can give a
better title than he himself possesses. The second is the protection
of commercial transaction: the person who takes in good faith and
for value and without notice should be good title. The first
principle held sway for a long time but it has been modified by
common law itself and by statute so as to meet the needs of our
times.”
 Sec 27 of Indian Sale of Goods Act
embodies this principle.
S-27. SALE BY PERSON NOT THE OWNER
 Subject to the provisions of this Act and of any
other law for the time being in force, where
goods are sold by a person who is not the owner
thereof and who does not sell them under the
authority or with the consent of the owner, the
buyer acquires no better title to the goods than
the seller had, unless the owner of the goods is
by his conduct precluded from denying the
seller's authority to sell:
 Where goods are sold by a finder or a thief
the buyer gets no title.
EXCEPTIONS

 1. Estoppel [S.27] ..\[Link]

 2. Sale by Mercantile agent [S.27,proviso]

 3. Sale by joint owner [S.28]

 4. Sale by person in possession under

voidable contract [S.29.]
 5. Seller in possession after sale[ S.30(1)]

 6. Buyer in possession before sale. [S.30(2)]

CAVEAT EMPTOR

 Let the buyer beware

 Complete Maxim is caveat emptor,qui
ignorare non debuit quod jus alienum emit-

 Let the purchaser beware, who ought not to

be ignorant that he is purchasing the rights
of another.
 Section 16 Sale of Goods Act-Implied condition of
quality or fitness

 “Subject to the provisions of this Act and of any other

law for the time being in force, there is no implied
warranty or condition as to the quality or fitness for
any particular purpose of goods supplied under a
contract of sale,……..”
EXCEPTION TO CAVEAT EMPTOR
 Section 16 (1) Where the buyer, expressly or
by implication, makes known to the seller
the particular purpose for which the goods
are required, so as to show that the buyer
relies on the seller's skill or judgement, and
the goods are of a description which it is in
the course of the seller's business to supply
(whether he is the manufacturer or
producer or not), there is an implied
condition that the goods shall be reasonably
fit for such purpose:
 Grant v Australian Knitting Mills Ltd.
 There was breach of implied condition that goods shall
be reasonable fit for a certain purpose, and as such ,the
seller was liable to the buyer in damages.
 Sale under Trade Name [Proviso to S 16(1)
Provided that in case of a contract for the
sale of a specified article under its patent or
other trade name ,there is no implied
condition as to its fitness for any particular
purpose.
 Baldry v Marshall
(b) Merchantable quality [s.16(2)]
 Where goods are bought by description
from a seller who deals in goods of that
description (whether he is the
manufacturer or producer or not), there is
an implied condition that the goods shall be
of merchantable quality;
(c ) Conditions implied by trade usage
[s.16(3)]
 An implied warranty or condition as to
quality or fitness for a particular purpose
may be annexed by the usage of trade.
(d) Express terms [s.16(4)]
 An express warranty or condition does not
negative a warranty or condition implied by
this Act unless inconsistent therewith.
‘QUI SENSI COMMONDUN DEBET ET
SENTIRE ONUS’

 ‘qui sensi commondun debet et sentire onus’

which means he who accepts the benefit of
transaction, must also accept the burden of
same.
 SECTION 127 of TPA – ONEROUS GIFT

 A gift sometimes possess the essence of

contract. Where the gift is coupled with a
duty to be performed it is known as onerous
gift.
 The donee cannot take what is to his benefit
and reject the rest charged with an
obligation.
 The donee in such a case must elect either
to accept it as a whole or reject it
altogether, it is a joint gift of benefit as well
as burden by one single transaction and
there can be no splitting of the gift.
 However, if the gifts are separate and
independent of each other the donee is not
under any obligation to keep them all, he is
free to keep the gift which is free from
obligation and reject that which is subject
to a burden .
 Where there is burden with a gift a minor
who has accepted is not and cannot be
bound by any such acceptance but he may
accept the same or reject when he attains
majority and become aware of the burden
or obligation.
EX NUDO PACTO NON ORITUR ACTIO
 No cause of action arises from bare
promise.
 Mere promise is not enforceable

 Maxim relates to enforceability of

contracts.
 Enforceability depends upon the price of
the promise ie., consideration.
 Example – If a person promises to pay a
man Rs 100 for nothing who neither does
nor promises anything in return, the
promise is nudam pactum and has no force
in law.
 Basis of maxim was explained by
Blackstone, “A consideration of some sort or
other is so necessary to the forming of a
contract that a nudum pactum, or
agreement to do or pay something on one
side; without compensation on the other,
will not at law support an action ,and a
man cannot be compelled to perform it.”
 Section 2(d) of Indian Contract Act
 Section 25 declares agreement without
consideration is void.
“UT LITE PENDENTE NIHIL INNOVETUR”
 Section 52 of Transfer of Property Act is
based on the maxim which means – that
nothing new should be introduced in to the
pending litigation.
 Basis of Section 52 in Indian Courts is not
the doctrine of notice but expediency ie.,
the necessity for final adjudication and
public policy.

 Doctrine does not rest on any kind of notice

but on necessity that neither party to the
litigation should alienate the property in
dispute.
 The property which is in dispute should not
either be sold or otherwise dealt in by any
party to the dispute during the pendency of
the suit

 This doctrine is based upon expediency and

it is immaterial whether the transferee
pende lite had or had not notice of the suit.
 Where a suit or proceeding is pending
between two persons with respect to an
immovable property and one these parties
sells or otherwise transfers the subject
matter of the litigation, then the transferee
will be bound by the result of the suit or
proceeding whether he had the notice of
the suit of proceeding or not. This is known
as the rule of lis pendens.
 In case of Gauri Dutt v Sukur Mohd.
(1948), A transfer was affected next day
after the institution of the suit, the
section was held to apply to the transfer
although nothing was done to inform the
transferor regarding the institution of the
suit
 If a plaint is presented in a wrong court and
transfer takes place during such pendency,
the doctrine of lis pendens would not be
applicable.
ESSENTIAL REQUIREMENT
• The following conditions must be fulfilled for the applicability of this
section:
1. There must be a pending suit or proceeding
• Pendency of the suit or proceeding begins from the date of the
presentation of the plaint or institution of the proceeding in a court
of competent jurisdiction

2. The suit or proceeding must be pending in a Competent Court

3. The suit or proceeding must not be collusive (Acting together in secret

toward a fraudulent or illegal end)
4. The right to immovable property must be directly of specifically in
question in that suit or proceeding.

5. The disputed property must be transferred or otherwise dealt with by

any party to the dispute.
 Example:

 A mortgaged property to B. B sued on the mortgage and obtained

a decree for foreclosure. Before the decree was made absolute, A
sold property to C. The decree for foreclosure was made absolute
and it was held that C was not entitled to redeem. If he had
purchased before the suit ,he would have been entitled to redeem
though not made a party. But as his purchase was pendente lite,
he was bound by decree.

 A mortgaged property to B. B sued on his mortgage and obtained

a decree for sale. A then made a usufructuary mortgage of the
same property in favour of C. B obtained a final decree for sale
and in execution the property was sold and purchased by D. C’s
usufructuary mortgage was invalid as against D under the rule of
lis pendens. D was entitled to recover possession from C and to
recover all rents collected by C from the date of D’s purchase
 ACTIO PERSONALIS MORITUR CUM
PERSONA

 A personal right of action dies with the person.

 Death of either party extinguished the suit.

 It means in any case either the plaintiff or
the defendant died, the cause of action
comes to an end.

 Normally the rule underlying the maxim

applies to the cases of defamation, assault
and personal injuries.
 But this rule is subject to two exceptions:

 1. Action arising under contract

 2. Statutory exception
 Fatal Accident Act,1855( in cases of death caused by
wrongful act,neglect or default, action will continue
in the same manner as deceased would have
continued had he not died)
 Workmen’s Compensation Act,1923 (it allows claim
of compensation by the representatives(dependents)
of a deceased workman.)
 3. Unjust enrichment of tortfeasor’s estate
 (if the wrong doer has misappropriated the
property of the petitioner, then the property
would be recovered from his legal
representative in the case of death during the
pendency of the suit.)
EX TURPI CAUSA NON ORITUR ACTIO

 No right of action arises from an

immoral or disgraceful consideration.
 The basis of maxim is that an
agreement to do an unlawful act cannot
be supported at law.
 no right of action can spring out of an
illegal contract.
 This rule applies not only where the contract is
illegal but wherever it is opposed to public policy
or is founded on immoral consideration.
SIC UTERE TUO UT ALIENUM NON
LAEDAS

 Enjoy your own property in such a manner

as not to injure that of another.

 This maxim applies to the cases of

negligence use of ones own property
 A similar maxim is expedit reipublicae ne
sua res quis male vatatur ie., a man must
enjoy his property in such a manner as not
to invade the legal rights of his neighbour.
Maxim imposes restriction:
 Upon the enjoyment of
property
 Upon the conduct of each
individual member of the
community
 Lord Cranworth has explained this maxim in
Rylands v Fletcher – “For when one person is
managing his own affairs causes however
,innocently, damage to another, it is obviously
only just that he should be the party to suffer .
He is bound ‘sic uti suo ut non laedal alienum’.
 Facts-
 Defendant got reservoir constructed through
independent contractor for the purpose of
providing water to his mill.
 There were old disused shafts under the site
which contractor failed to observe and so did not
block them.
 On filling water reservoir burst through shafts
and flooded the plaintiffs coal mines
 Even though defendant had not been negligent,
he was held liable.